You are here

February 28, 2019, Trial News

Mandy Brown

The Court of Appeals for the Federal Circuit has ruled that veterans who served in Vietnam’s territorial seas without setting foot on land—known as “Blue Water” Navy veterans—should be considered to have “served in the Republic of Vietnam” and thus entitled to the benefit of 38 U.S.C. §1116. The en banc decision entitles these veterans to §1116’s “presumption of service connection” if and when they develop certain health conditions—a significant shift that attorneys said should make it easier for thousands of injured veterans to receive disability benefits.

The Court of Appeals for the Federal Circuit has ruled that veterans who served in Vietnam’s territorial seas without setting foot on land—known as “Blue Water” Navy veterans—should be considered to have “served in the Republic of Vietnam” and thus entitled to the benefit of 38 U.S.C. §1116. (Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019)). The en banc decision, which overrules Haas v. Peake (525 F.3d 1168 (Fed. Cir. 2008)), entitles these veterans to §1116’s “presumption of service connection” if and when they develop certain health conditions—a significant shift that attorneys said should make it easier for thousands of injured veterans to receive disability benefits.

Section 1116—passed in 1991 as the “Agent Orange Act”—established that veterans who served in Vietnam between January 1962 and May 1975 and later developed specific listed illnesses “shall be presumed to have been exposed during such service to [Agent Orange].” The U.S. Department of Veterans Affairs (VA) later issued a series of regulations that limited §1116’s application to Vietnam veterans who had put a “foot-on-land” or traveled through inland waterways.

The Federal Circuit analyzed these regulations in Haas, where a Blue Water Navy veteran alleged his illness resulted from exposure to Agent Orange despite serving in only offshore waters. Applying the two-part Chevron deference test, (467 U.S. 837 (1984)), the court held that the language of §1116 was ambiguous as applied to Blue Water Navy veterans. The court then determined that although the agency regulations were ambiguous, they were a “reasonable interpretation of the statute,” and it deferred to the agency’s interpretation under the Auer v. Robbins (519 U.S. 452 (1997)) standard.

Here, Alfred Procopio, a Blue Water Navy veteran, applied for disability benefits after developing diabetes mellitus and prostate cancer, medical conditions listed under §1116 and the related regulations. In March 2011 and July 2015, the Board of Veterans’ Appeals denied Procopio a service connection that would allow him to receive benefits under §1116, concluding that the evidence did not support that he “was present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange.” The Court of Appeals for Veterans Claims affirmed, and Procopio appealed. After a Federal Circuit panel heard oral arguments in May 2018, the court decided sua sponte that the case should be heard en banc, holding oral arguments again in December 2018.

The court again applied the Chevron test but this time it found that the language of §1116 unambiguously supported Procopio. The court pointed to international law agreements in place when §1116 was enacted, including the Geneva Accords, the Convention on the Territorial Sea and the Contiguous Zone, and the United Nations Convention on the Law of the Sea; all of these “uniformly confirm that the ‘Republic of Vietnam’ includes its territorial sea.” As a result, the court wrote, “we conclude at Chevron step one that the intent of Congress is clear from the text of §1116: Mr. Procopio, who served in the territorial sea of the ‘Republic of Vietnam,’ is entitled to §1116’s presumption.”

The court rejected the government’s argument that agency regulations enacted in 1997—six years after §1116—created ambiguity about the statute’s meaning. The court also noted that the government had failed to cite “any instance in which the unmodified use of a formal sovereign name has been construed to not include its territorial sea.” Overruling Haas, the court “respectfully” noted that the Haas court “went astray when it found ambiguity in §1116.”

“This important decision makes it possible for veterans who served in the territorial waters of Vietnam to receive disability benefits for exposure to Agent Orange,” said Brent Filbert, the director of the veterans clinic at the University of Missouri School of Law, which filed an amicus brief in support of Procopio. “These veterans have been denied benefits for far too long. The VA’s long-held position that Blue Water Navy veterans were not entitled to a presumption of exposure to Agent Orange was contrary to the clear intent of Congress, international law, and scientific exposure evidence.”

Slidell, La., attorney John Wells, one of the attorneys representing Procopio, also highlighted the decision’s potential impact. “Vietnam veterans who served in bays, harbors, and territorial seas are now going to be presumed to have been exposed to Agent Orange, which will affect tens of thousands of people. We also plan to continue to pursue legislation with a look-back provision that would require the VA to notify people whose claims were previously denied of this new standard.”

The VA has until the end of April to appeal to the U.S. Supreme Court.